Witness for the Prosecution?

The New York Times is still victimizing innocent Dukies.

Imagine you are the world's most powerful newspaper and you have invested your credibility in yet another story line that is falling apart, crumbling as inexorably as Jayson Blair's fabrications and the flawed reporting on Saddam Hussein's supposed WMD. What to do?

If you're the New York Times and the story is the alleged gang rape of a black woman by three white Duke lacrosse players—a claim shown by mounting evidence to be almost certainly fraudulent—you tone down your rhetoric while doing your utmost to prop up a case that's been almost wholly driven by prosecutorial and police misconduct.

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And by bad journalism. Worse, perhaps, than the other recent Times embarrassments. The Times still seems bent on advancing its race-sex-class ideological agenda, even at the cost of ruining the lives of three young men who ithas reason to know are very probably innocent. This at a time when many other true believers in the rape charge, such as feminist law professor Susan Estrich, have at last seen through the prosecution's fog of lies and distortions.

The Times took its stand in a 5,600-word, Page One reassessment of the caseon Aug. 25, written by Duff Wilson, a sportswriter responsible for much of the paper's previous one-sided coverage, and Jonathan Glater. The headline was "Files From Duke Rape Case Give Details But No Answers."

Like the headline, the piece cultivates a meretricious appearance of balance. But its flaws are so glaring that it was shredded by bloggers within hours after it hit my doorstep. They were led by a Durham group called Liestoppers and by KC Johnson, an obscure but brilliant New York City history professor of centrist political views. Johnson alone has produced more insightful (if sometimes one-sided) analysis and commentary on the Duke case—about 60,000 words—than all the nation's newspapers combined.

The Wilson-Glater piece highlights every superficially incriminating piece of evidence in the case, selectively omits important exculpatory evidence, and reports hotly disputed statements by not-very-credible police officers and the mentally unstable accuser as if they were established facts. With comical credulity, it features as its centerpiece a leaked, transparently contrived, 33-page police sergeant's memo that seeks to paper over some of the most obvious holes in the prosecution's evidence.

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This memo was concocted from memory, nearly four months after the underlying witness interviews, by Durham police Sgt. Mark Gottlieb, the lead investigator. Gottlieb says he took no contemporaneous notes, an inexplicable and indefensible police practice. Gottlieb had drawn fire before the alleged Duke rape—perhaps unbeknownst to the Times—as a Dukie-basher who reveled in throwing kids into jail for petty drinking infractions, noise violations, and the like, sometimes with violent criminals as cellmates.

Gottlieb's memo is contradicted on critical points by the contemporaneous notes of other police officers, as well as by hospital records seeming to show that the accuser did not have the injuries Gottlieb claims to have observed. The Times blandly mentions these contradictionswhile avoiding the obvious inference that the Gottlieb memo is thus unworthy of belief.

It is almost entirely on this Gottlieb memo that the Times rests its summing-up fifth paragraph:

[A]n examination of the entire 1,850 pages of evidence gathered by the prosecution ... shows that while there are big weaknesses in [District Attorney Mike] Nifong's case, there is a body of evidence to support his decision to take the matter to a jury.

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A sly formulation. Whoever thought it up chose to focus on the legalistic question of whether Nifong can avoid having his case being thrown out before trial, while glossing over the more important question as to whether any reasonable prosecutorcould believe the three defendants to be guilty and force them through the risk, expense, and trauma of a trial.

With all or almost all of the key prosecution evidence now public, the answer to that latter question is no. What we have here is an alleged 30-minute gang rape, plus brutal beating, taking place in a small bathroom by three men without condoms, at least two of whom supposedly ejaculated; a rape in which police found none of the defendants' DNA on the supposed victim and none of hers in the bathroom. While the Times asserts that "experts say it is possible for a rapist to leave no DNA evidence," it's hard to imagine the crime alleged to have happened here leaving none.

The accuser first claimed rape while in the process of being involuntarily committed to a mental-health/drug facility as a danger to herself or others. Soon after her release to the hospital for a rape exam, she recanted the charge. Then she re-recanted and offered a succession of wildly inconsistent stories.

The other exotic dancer at the lacrosse party initially told police that they had been apart no more than five minutes and the rape claim was a "crock." (She later hedged after Nifong gave her favorable treatment for a probation violation.)

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The 23 pages of hospital reports by two doctors and four nurses show no vaginal or anal tearing, no significant bruises or signs of beating, and no visible injuries other than minor scratches on her knee and heel and a mild swelling of the vaginal walls that could have come from consensual sexual activities, including performing with a vibrator.

She identified none of her alleged attackers in two photo viewings. Then, on April 4, Nifong arranged an outrageously suggestive, pick-any-lacrosse-player session that grossly violated local and state rules and (in my view) the U.S. Constitution. She picked three, of whom at least one since-indicted defendant, Reade Seligmann, has an airtight alibi, including a video showing him at an ATM a mile away at the time of the supposed rape.

The Times piece mentioned most of this exculpatory evidence but understated its cumulative weight and gave unwarranted credence to contrary evidence of dubious credibility, such as the Gottlieb memo.

This fits the Times's long-standing treatment of the case as a fable of evil, rich white men running amok and abusing poor black women. Sports columnist Selena Roberts helped set the tone in a March 31 commentary seething with hatred for "a group of privileged players of fine pedigree entangled in a night that threatens to belie their social standing as human beings." All but presuming guilt, Roberts parroted false prosecution claims that all team members had observed a "code of silence." (A correction ran six days later). She likened them to "drug dealers and gang members engaged in an anti-snitch campaign."

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The Aug. 25 Wilson-Glater piece is more measured in tone, but ultimately it's equally off-base. A few of many possible examples:

Accuser's inconsistent stories:The accuser told police and hospital personnel at least five inconsistent stories of being raped by five, three, two, and zero men (depending on the version). But the Times asserts that "aside from two brief early conversations with police, she gave largely consistent accounts of being raped by three men in a bathroom."

Consistent? Just about the only consistent theme was her eventual settling on three attackers, while variously denying and then alleging that she was hit or kicked.

On March 14 the accuser told a sexual-assault nurse that the other dancer, Kim Roberts, had helped a lacrosse player drag her back into the party house to be raped and "took all my money and everything." But on April 6, in her only written police statement, she claimed that "three guys grabbed" Roberts and "separated us ... while we tried to hold on to each other."

Identifying assailants:When Sgt. Gottlieb and Det. Benjamin Himan visited the accuser on March 16, Himan's handwritten notes had her describing her rapists as (respectively) "chubby," having a "chubby face," and weighing "260-270." These descriptions match none of the three subsequently indicted defendants and could not possibly refer to one, Collin Finnerty, who is 6-foot-4, thin, and baby-faced.

Enter Sgt. Gottlieb: In his only account of the same interview—prepared four months later, remember—the accuser's descriptions contradict those recorded by Himan but miraculously match the three now-defendants almost perfectly.

Again,the Times notes the contradiction but avoids the obvious inference: Gottlieb's version was made up to fit the defendants. That's the only way to explain another fact omitted by the Times: Gottlieb's police team did not include a photo of Finnerty—the only team member who fits Gottlieb's account of a "baby-faced, tall, lean" rapist—in the 36 photos shown to the accuser later on March 16 and on March 21. Nor did she pick Seligmann and Evans until the rigged April 4 session, when she said she would be 90 percent sure that Evans had raped her if he had a mustache—which he has never had.

Medical evidence:The 23 pages of hospital reports described above, which offer little or no evidence of rape, are a crippling weakness in Nifong's case.

Enter Sgt. Gottlieb again. The Times treats as established fact his memo's less-than-credible claim that the sexual-assault nurse told him on March 21 that the accuser had been subjected to "blunt force trauma" consistent with a sexual assault. The piece also glosses over the contradiction between her supposed statement to Gottlieb and her own report. Under "Describe all signs of physical trauma," she listed only nonbleeding scratches on the accuser's right knee and heel.

DNA and innocence:The article quotes half a sentence from Nifong's March 23 application for an order to obtain DNA samples from the 46 white lacrosse players—"Mr. Nifong's office had written that the tests would 'show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.' "—while omitting the first half: "The DNA evidence requested will immediately rule out any innocent persons." Nor did the article explain how blatantly Nifong was to contradict this assurance after learning the DNA results.

Condoms, date rape:The Times cites Nifong's suggestion in early April that the reason no semen had been found might be the use of condoms. It fails to explain how deceptive this was: Nifong's own files showed the accuser saying her rapists had not used condoms and that she had spat semen onto the floor.

The article also mentions police speculation that the lacrosse players might have slipped the accuser a date-rape drug to incapacitate her. And Joseph Cheshire, Evans' lawyer, noted in a recent e-mail exchange with me that the prosecution "has suggested to the media numerous times in the past that the accuser had been given such a drug." Another deception? "A toxicology report that the defense was informed of last week was negative for any date rape drug in the accuser's system," Cheshire tells me.

Cheshire adds that the Times' strong implication that defense lawyers have deceived the public is not only false but "especially ironic in an article about a prosecutor who has and continues to deceive the public about his case."

Nifong must be praying for jurors as easily deceived—or as willing to see past the evidence to what they want to believe—as Wilson and Glater of the Times.